Dealing with a criminal client can often be difficult at best; however, dealing with a criminal client that is exhibiting mental illness can be down right impossible. Further complicating matters, often times a client’s mental illness is masked by substance abuse, physical and/or emotional abuse sustained as a child, or cultural differences making it impossible for his/her attorney to quickly and correctly identify the need for a competency examination. Sometimes a client ‘s silence can be misinterpreted as “stone cold” while other times it may be interpreted as simply ignorance as to the amount of trouble the client really faces.

The interpretation of the Insanity Defense Reform Act of 1984 is guided by three principles: (1) Congress’s power to provide for the custody of persons charged with a crime and awaiting trial, (2) limitations on the power of Congress by the fact that the care of insane persons is essentially a function of the state, and (3) assuring commitment proceedings pursuant to statute comport with due process. United States v Shawar, 865 F.2d 856 (7th Cir. 1989).

In either event, it is imperative that the attorney motion for a competency examination as fast as possible. Most Assistant United States Attorneys will not oppose such a motion if you speak with them in advance and explain your need for such exam.

The attorney should file with the trial court a, unopposed if possible, motion for competency and criminal responsibility, and supporting brief thereof. The attorney should state why the competency and criminal responsibility examination is needed: that defendant is unable to verbalize; unable to verbalize appropriate answers to questions posed by counsel; unable to identify key personnel in a criminal trial; unable appreciate the charges against them; unable to understand criminal proceedings, even after having appeared in Court with counsel; and unable to understand the possible penalties faced he/she faces.

Typically, after counsel files the request the Federal Court will order that the defendant undergo a psychological evaluation for the determination of competency and criminal responsibility, pursuant to 18 U.S.C. §§ 4241 and 4242.

The defendant will then be evaluated at a Federal Bureau of Prisons mental health facility. In preparing the competency report the forensic doctor will reviewed all records, including: court orders; the indictment; criminal complaint; police reports; and other medical/mental health records. Also, typically both defense counsel and the Assistant United States Attorney will be asked for their input.

Once the evaluations are completed a report relating to the finding of defendant’s competency and criminal responsibility will be filed under seal. A hearing will then be scheduled where the Court will determine if the defendant is competent to stand trial.

Assuming the defendant is found not competent to stand trial, an Order will be entered directing that the defendant undergo competency restoration.

Section 4241(d) provides that if the court finds that the Defendant “is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against her or to assist properly in her defense, the court shall commit the defendant to the custody of the Attorney General.” See id. 18 U.S.C. § 4241(d).

During competency restoration, the defendant will again be evaluated. The doctor, and other members of the forensic team, as well as correctional and medical staff, will have the opportunity to observe the defendant’s behavior. As part of the restoration process the defendant will attend classes on a weekly basis, as well as other modalities. Lastly, the staff will determine if the defendant was noted to have put forth adequate effort during the restoration process. In most cases after four months the doctor will form an opinion as to whether or not the defendant continues to suffer from a mental disease or defect that renders him/her unable to understand the nature and consequences of the proceedings against him/her and to assist properly in his/her own defense. Further the doctor will give an opinion as to whether additional efforts toward restoration of competency would be unsuccessful on the defendant.

If the defendant is determined competent at this point, the criminal case against the defendant may then proceed. Often times, counsel for defendant will ask for an independent evaluation at this point to be assured that in fact their client is competent to proceed.

Alternatively, if it is determined that the defendant may gain competency within a short time period, with additional restoration services, the Assistant United States Attorney will often move that the defendant remain in custody and receive further restoration services. Case law allows for the extension of the four month time limit.

However, if it is determined that the defendant remains incompetent and that no further restoration services will assist the defendant in obtaining competency the Court may ask that an examination regarding the dangerousness of the defendant be made prior to the defendant’s release.

Section 4241(d) provides that “if, at the end of the time period specified, it is determined that the Defendant’s mental condition has not so improved as to permit the trial to proceed, the Defendant is subject to the provisions of section 4246.” Section 4246 continues that “if the director of a facility in which a person is hospitalized certifies that a person in the custody of the Bureau of Prisons . . . who has been committed to the custody of the Attorney General pursuant to section 4241(d) . . . is presently suffering from a mental disease or defect as a result of which her release would create a substantial risk of bodily injury to another, and that suitable arrangements for State custody and care of the person are not available, he shall transmit the certificate to the clerk of the court for the district in which the person is confined. 18 U.S.C.A. §4246(a). Upon the filing of this certificate, the statute provides that the court “shall order a hearing” to assess the defendant’s dangerousness. Id.

This is where the case may turn from criminal to civil. If the defendant is determined to be incompetent and a danger under 18 U.S.C. §4246 he/she will be civilly committed, possibly indefinitely. Section 4246 is “geared toward preventing the release of persons in federal custody who would, if set free, be dangerous to society because of mental illness.” United States v Volungus, 595 F.3d 1 (1st Cir. 2010). Section 4246 defines dangerousness as resulting “from a mental disease or defect.” (See 18 U.S.C. §4246(a)). The section allows for the indefinite civil commitment of an individual based upon certification from either the Director of the Federal Medical Facility that the individual would pose a substantial risk to a person or property of another, section 4246.

Under section 4246 if the Director of the Federal Medical Facility certifies that the defendant is dangerous and the Court finds in a subsequent evidentiary hearing, by clear and convincing evidence, that the defendant is dangerous, “the court shall commit the person to the custody of the Attorney General.” It should be noted that section 4246 only allows the Director of the Federal Medical Facility to make this determination.

If the individual is determined not to be a danger, the individual is to be immediately released. Should the individual be a danger but be released with conditions, section 4243(f) provides for a conditional discharge of an insanity acquittee under a prescribed regimen of medical treatment. An individual released under section 4246 with conditions must have a certificate filed by the Director of the Federal Medical Facility stating the conditions, and the conditions must be related to the individual’s medical, psychiatric, or psychological care or treatment. United States v Crape, 603 F.3d 1237 (11th Cir. 2010).

The issue really arises when a defendant is determined incompetent and not a danger. What is to happen to the defendant, or more importantly the criminal case against the defendant?

In most cases the Assistant United States Attorney argues that the defendant should be placed on “bond,” under § 3142 of the Bail Reform Act, for a short or indefinite time period. Counsel for defendant argues the criminal case against defendant should be dismissed.

The main purpose of the Bail Reform Act is to permit the pre-trial release of an individual charged criminally, while insuring the safety of the community and the future appearance of the individual at all court proceedings. (See 18 U.S.C. §3142).

First, the term “pre-trial release” implies that an individual is, in fact, awaiting trial. Although Black’s Law Dictionary does not define the term “pre-trial” in itself, it does define the terms, “Pre-trial conference”, “Pre-trial discovery”, “Pre-trial diversion”, and “Pre-trial Order.” (See Black’s Law Dictionary). Each of these definitions includes the phrase, “used prior to trial”.

But if the defendant was determined to be incompetent and not a danger the defendant is not awaiting trial. Remember, if a defendant is unable to be restored the Court will find that the defendant:

is suffering from a mental disease or defect rendering him/her mentally incompetent to the extent that he/she is unable to understand the nature and consequences of the proceedings filed against him/her or assist properly in his/her own defense, nor is there a substantial probability that his/her competency will be restored in the foreseeable future.

Second, the safety of the community is not at issue. Not unlike the Bail Reform Act, section 4246 is “geared toward preventing the release of persons in federal custody who would, if set free, be dangerous to society because of mental illness.” United States v Volungus, 595 F.3d 1 (1st Cir. 2010).

Counsel for defendant should argue that United States v Peppi, 2007 WL 674746(D.N.J.) (Feb.28, 2007), is controlling. In Peppi, the defendant was charged with threatening the President. Defendant Peppi was sent for a competency examination, determined incompetent, sent for restoration and determined to remain incompetent. Defendant Peppi was then determined to have a low risk to person or property and the Government thereafter dismissed the indictment against defendant.

Sometime after defendant Peppi’s release, he committed a new offense. Defendant Peppi was committed to a psychiatric hospital and a new indictment was brought against defendant Peppi. Defendant Peppi was once against determined incompetent, sent for restoration and remained incompetent after the restoration attempt. Defendant Peppi’s risk determination was, once again, determined to be low. However, on the issue of defendant Peppi’s release, the Government argued that defendant Peppi could only be released under conditions because the Government had not decided to again dismiss the indictment against him. The Government argued that the Bail Reform Act could be used to set the terms of defendant Peppi’s conditional release.

The Court in Peppi held that 18 U.S.C. §4246(d) mandates what is to occur if it is determined that the person previously committed is no longer dangerous: immediately discharge the individual or release the individual under a prescribed regimen of treatment by the Director of the Federal Medical Facility. The Court further held that the Bail Reform Act does not apply to a defendant for purposes of setting the conditions of release. The Court reasoned that an individual found not competent to stand trial, even though released, simply does not have the faculties to adhere to any condition or conditions of release.

The Supreme Court in Jackson v Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), held that “indefinite commitment of a criminal defendant solely on account of his incompetence to stand trial does not square with the Fourteenth Amendment’s guarantee of due process.” The Court reasoned that when a Defendant is found not to be dangerous, and no certificate of dangerousness is filed, the Defendant must be released.

ThePeppi Court

stated it best, stating that if a defendant “…cannot be brought to trial now, it seems an impermissible fiction to pretend that one is pending. If not pending trial, then the Bail Reform Act could not apply.” United States v Peppi, 2007 WL 674746(D.N.J.)

In conclusion, counsel for defendant should file a motion for dismissal based on the Speedy Trial Act if the defendant is incompetent, not a danger and the Assistant United States Attorney refuses to dismiss the case. Although it will not be harder to accumulate the necessary 70 days of delay with the ruling in Tinklenberg, it remains an almost a sure fire way to force the dismissal of your case.